from the overkill-far-preferable-to-underkill dept

NJ Rep. Rush Holt announced back on July 11th that he was planning legislation to repeal both the PATRIOT Act and the FISA Amendments Act. The text of Holt's bill, the "Surveillance State Repeal Act," has been posted, along with a summary of the key aspects of the legislation.

Holt's bill covers a lot of ground for something that only runs about 8 pages long, and as promised, some additional protection for whistleblowers is built in. Here's the summary:

3. Ensure that any FISA collection against a US Person takes place only pursuant to a valid warrant based on probable cause (which was the original FISA standard from 1978 to 2001).

4. Retain the ability for government surveillance capabilities to be targeted against a specific natural person, regardless of the type of communications method(s) or device(s) being used by the subject of the surveillance.

5. Retains provisions in current law dealing with the acquisition of intelligence information involving weapons of mass destruction from entities not composed primarily of U.S. Persons.

6. Prohibit the government from mandating that electronic device or software manufacturers build in so-called “back doors” to allow the government to bypass encryption or other privacy technology built into said hardware and/or software.

7. Increase the terms of judges on the Foreign Intelligence Surveillance Court (FISC) from seven to ten years and allow their reappointment.

8. Mandate that the FISC utilize technologically competent Special Masters (technical and legal experts) to help determine the veracity of government claims about privacy, minimization and collection capabilities employed by the US government in FISA applications.

9. Mandate that the Government Accountability Office (GAO) regularly monitor such domestic surveillance programs for compliance with the law, including responding to Member requests for investigations and whistleblower complaints of wrongdoing.

A couple of aspects worth noting: First, while the entirety of the PATRIOT Act is repealed, portions of the FISA Amendments Act remain unchanged, specifically Sections 103 and 110.

Section 103 requires the Attorney General to forward a copy of any "decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review that includes significant construction or interpretation of any provision of this Act," along with any related documents, within 45 days of the decision. This is a key part of the oversight process and should probably be retained, although it also retains the right of the Director of National Intelligence to redact as much of these required documents as he sees fit (for "national security" reasons, of course).

Section 110 deals with weapons of mass destruction, as is noted in Holt's summary of the bill.

I'm not sure what extending the FISC judges' terms from 7 to 10 years and allowing for reappointment is supposed to accomplish, unless the hope is that in the future, there will be more diversity in court makeup (currently only one judge does not lean Republican) and that better judges will be retained longer. Hopefully, the addition of "Special Masters" to act in a somewhat adversarial role (or at least call "bullshit" on egregiously false claims) will result in less of a "rubber stamp" process.

The summary doesn't really address the whistleblower protections, other than the last sentence of point 9, which doesn't explain much. The wording in the bill is as follows:

SEC. 9. WHISTLEBLOWER COMPLAINTS.

(a) AUTHORIZATION TO REPORT COMPLAINTS OR INFORMATION.--An employee of or contractor to an element of the intelligence community that has knowledge of the programs and activities authorized by the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may submit a covered complaint--

(1) to the Comptroller General of the United States; (2) to the Permanent Select Committee on Intelligence of the House of Representative (3) to the Select Committee on Intelligence of the Senate; or (4) in accordance with the process established under section 103H(k)(5) of the National Security Act of 1947 (50 U.S.C. 3033(k)(5)).

(b) INVESTIGATIONS AND REPORTS TO CONGRESS.--The Comptroller General shall investigate a covered complaint submitted pursuant to subsection (b)(1) and shall submit to Congress a report containing the results of the investigation.

(c) COVERED COMPLAINT DEFINED.--In this section, the term ''covered complaint'' means a complaint or information concerning programs and activities authorized by the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) that an employee or contractor reasonably believes is evidence of--

(1) a violation of any law, rule, or regulation; or (2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

(a) IN GENERAL.--Notwithstanding any other provision of law, an officer or employee of an element of the intelligence community shall be subject to administrative sanctions, up to and including termination, for taking retaliatory action against an employee of or contractor to an element of the intelligence community who seeks to disclose or discloses covered information to--

(1) the Comptroller General; (2) the Permanent Select Committee on Intelligence of the House of Representatives; (3) the Select Committee on Intelligence of the Senate; or (4) the Office of the Inspector General of the Intelligence Community.

(A) a violation of any law, rule, or regulation; or (B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

This offers better whistleblower protection, especially in terms of guarding against retaliatory actions. Unfortunately, this won't protect whistleblowers like Snowden, who quit of his own accord (eliminating the chance of retaliatory action) and is now facing espionage charges. Providing several routes for whistleblowers to take helps, but if anyone above these routes objects to the whistleblower (and is outside the "intelligence community" -- like the administration itself), the built-in protections of this legislation are nullified. (Of course, the same could be said about any legislation protecting whistleblowers, once the administration steps in. And I'm sure most officials won't consider "investigating" a whistleblower to be a "retaliatory" action, no matter how intrusive or destructive the outcome.)

Does this legislation have a chance? Rep. Amash's attempt to defund parts of the NSA's surveillance efforts lost by a handful of votes, but did prove that there was bipartisan support for dialing back the NSA's power. This is an even longer shot, and may be too aggressive to gain as much support as Amash's amendment. Of course, there will be a whole lot of rewriting going on before this ever gets to a vote, so the broad reach of this bill may be scaled back into something with better support without (hopefully) losing all of its bite.

Oh this should be good

Considering how much the WH, NSA and various others freaked out over an amendment that just aimed at denying the NSA funding for something they weren't supposed to do anything, they are going to go absolutely ballistic over this.

Lacking Transparency...

Honestly, repealing the PATRIOT act to its original 2002 signing form would be a better idea than totally abolishing it. FISA 1978 lacked transparency between the NSA and other government agencies. That's why the Patriot Act was created. FISC Courts added sections to the Patriot Act that allowed the NSA even more power than was intended.

I think it's just that the FISC and NSA egregiously abused their powers to add to the Patriot Act which is why Snowden blew the whistle. I see no reason for the Patriot Act to be abolished. I do however, think the 2010 and 2008 FISA amendments should be completely stricken and a new section to the Patriot Act making sure rubber stamping doesn't happen. Also, I don't think it wise to give the Attorney General the go ahead for reviewing and making any decisions on any changes...the AG is not a law maker...he carries out the law...therefore any changes to policy proposed should be openly public and go straight to Congress so they can make a decision on it. After all, if Congress decides the wrong way about our privacy as US Citizens, we can always not vote for them...it help us voters keep their power in check.

A quick note about ads.

I want to support this site so, I browse it with my ad-blocker off. However, the auto-playing Wall Street Journal video ads with sound are not a good idea. Especially when there are two on the same page. I recently killed a rootkit that caused overlapping video ads to constantly play in a hidden window on a customers computer. For a second, I thought that I'd caught something >_

Re:

Don't most federal judges sit for life? I don't see ten years being that bad when you compare it to that standard although, I'd prefer that FISC judges go through the same appointment/confirmation process that other federal court judges go through.

This will never pass. Both parties, Democrats and Republicans, support the government's ability to spy on every American. After all, neither party represents the American People. The only time that Democrats and Republicans represent the people is during the election season. After they get elected into office, they go back to the same BS that they previously engaged in.

There also needs to be...

Specified harsh penalties for violating the act. Even if these sorts of things are codified into law, the NSA will just violate them anyway. Until the people responsible like Clapper and Alexander face the real possibility of facing serious jail time there is no deterrence. They will simply do it anyway. If caught, someone may resign from a position only to take a cushy job for a private contractor just to be replaced by someone else who will do the same thing all over again once the outrage dies down. There needs to be serious jail time here for these violations. It's the only way it will really ever stop.

This bill is dead on arrival. Thanks to the Patriot act, the NSA has too much legally collected blackmail material on our elected political heroes for this ever to achieve a majority in either the house or the senate, much less the veto-proof majority it would require to actually be put into law.

Rand Paul suspiciously silent

I notice that despite his rhetoric and filibusters and histrionics, there's been a distinct lack of legislation to rein in the surveillance state from Congressman Rand Paul of Kentucky. Despite the fact that his party is in power in the House of Representatives so his bill might actually stand a chance of being called for a vote by Speaker Boehner.

Perhaps the difference between Reps Rush Holt and Rand Paul is that the former actually cares about fixing this issue and the latter is just trying to make hay with the low-information undergrads who comprise his fan club. Because he's nothing but a grifter, like his old man.

Should call it the SMART Act

Re: Rand Paul suspiciously silent

Yes, I know Rand Paul is in the senate. My mistake. I momentarily forgot that he moved from the House to the Senate. But he was in the House the first time we learned about the overreach of the NSA and the FISA court, and though he had a lot to say, there was no legislation dealing with it issuing from his office.

But if he really does care about the issue instead of just grifting, he could certainly voice support or sponsor such a bill in the Senate.

Re: Lacking Transparency...

Publically discussed is something a secret service never wants to be. There is no way enough information will reach the public for any reasonable public judgement of how the politicians handle it and what politician would risk having to walk the very thin line between discussing secret service powers and giving away treasonous information (they all know how it went for Snowden)? If anything it is a bipartisan issue with support from the main party of interest...

Some further explanations on the bill

Based on Tim's observations and some of the comments I've read, I thought I'd try to provide a little more context for some of the provisions, and also to offer the updated version of the bill that will actually be posted officially next week:

You will note that we actually have the House and Senate Judiciary Committees as committees whistleblowers can make covered disclosures to (Sections 9 and 10). This has long been an objective of Rep. Holt's and goes back to his experience on the House Permanent Select Committee on Intelligence (HPSCI). Rep. Holt always felt that the Judiciary Committee should be just as involved in these matters as HPSCI, particularly with respect to dealing with whistleblowers.
As a former CIA whistleblower, I can attest personally for the need for these kind of changes.

Additionally, this bill--for the first time--creates specific statutory authority for the Government Accountability Office (GAO) to be involved in real oversight of the Intelligence Community (IC). Currently, the CIA Act of 1949 (among other statutes) bars GAO from conducting audits and investigations within the IC components that actually have a hands-on role (i.e. either analytically or operationally). Rep. Holt has been pushing this change for years, for obvious reasons.

Tim is correct that our intent in increasing the terms of FISC judges and allowing for their reappointment is designed to help increase their overall expertise in this area of the law and technology, which is complex to say the least. The Special Master provision was inspired by Judge Thomas Pennfield Jackson's use of them during DoJ-Microsoft anti-trust trial in the late 1990s. However, we recognize that the specific reforms proposed in this particular bill are just some that need to be made. We picked these because there is ample precedent for what we're proposing, and because we are considering follow on legislation that will more broadly reform the FISC.

I should also note that the pre-9/11 version of FISA actually worked perfectly well, as the 9/11 Commission itself noted in its report. One of the points Rep. Holt has made repeatedly is that 9/11 happened not because of a lack of information, but because the federal intelligence and law enforcement communities failed to share the information they had. As Senators Wyden and Udall have noted, the claims that these additional authorities have actually prevented attacks is at best grossly exaggerated and at worst demonstrably false.

As for the bill's chances, I'd offer the following observation: before Snowden's revelations, there was zero discussion about changing these laws because they had just been reauthorized in the last Congress. Snowden, along with some other developments (a federal judge declaring PATRIOT Act national security letters unconstitutional earlier this year) has created a different climate. As Glenn Greenwald has made clear, there will be other revelations in the coming weeks and months. As that unfolds, you will likely see public and Congressional opinion shift even further towards repealing much more, if not most, of the post-9/11 surveillance laws. That pattern is exactly how FISA came to be in 1978.

One final thought. It is true that virtually no bill that is introduced is ever enacted in exactly the form in which it was first offered. What is also true is that if people support the standard that this bill represents, they should call their House/Senate members (202-224-3121) or email them and ask them to co-sponsor HR 2818, the Surveillance State Repeal Act.

Happy to answer further questions on this thread or you can contact me thus:

This will never pass the AIPAC owned congress. The patriot act has put a stranglehold on the Constitution & the Bill of Rights. Israel, sensing the imminent death of the American People, is not about to let this go. They have come too far. We are past the point of any conventional return & I pray that I am wrong. Just watch their lobbyists go to work this week on our congress to strike Syria. This power needs to be expunged.

Re:

Even if it DID pass, anyone who seriously believes this will keep the NSA from spying on anyone it wants to (and without warrant) is delusional. Wake up, people. I know it's difficult to face reality, but face it we must.